DAVID W. CHRISTEL, Magistrate Judge.
The District Court has referred this action to United States Magistrate Judge David W. Christel. Petitioner John Ray Woods, Jr. filed his federal habeas Petition ("Petition"), pursuant to 28 U.S.C. § 2254, seeking relief from a state court conviction. Dkt. 6. Petitioner has also filed a Motion to Strike/Dismiss ("Motion to Strike"), raising the same arguments as he does in his Petition and requesting the same relief. Dkt. 9. The Court concludes the Petition is time-barred, Petitioner is not entitled to equitable tolling, and recommends the Petition be dismissed with prejudice. The Court also finds the Motion to Strike is not contemplated under the Federal or Local Rules, and so also recommends it be denied.
On February 2, 2016, Petitioner pled guilty to assault in the third degree, harassment, tampering with a witness, and three counts of violation of a no contact order. Dkt. 13, Exs. 1-3. Petitioner was sentenced to and is currently serving fifty-seven months of imprisonment. See id. at Ex. 3. Petitioner did not challenge his convictions or sentences on direct appeal. See Dkt. 12. But, Petitioner filed nine post-conviction motions challenging his convictions and sentences.
On December 2, 2016, Petitioner filed a motion to dismiss due to lack of jurisdiction. Dkt. 13, Ex. 5. The Pierce County Superior Court ("trial court") transferred the motion to dismiss to the Washington State Court of Appeals ("state court of appeals") to be considered as an application for a state collateral attack, a Personal Restraint Petition ("PRP"). See id. at Ex. 6. The state court of appeals dismissed Petitioner's first PRP on March 28, 2017. Id. at Ex. 9. The state court of appeals issued a certificate of finality, stating the PRP became final on April 28, 2017. Id. at Ex. 10. Petitioner did not seek review from the Washington Supreme Court. See id.
On January 24, 2017, Petitioner filed a motion to vacate, which was transferred to the state court of appeals to be considered as a PRP, Petitioner's second PRP. Dkt. 13, Exs. 11, 12, 13. On May 19, 2017, the state court of appeals dismissed the second PRP on the ground of abandonment because Petitioner did not pay the filing fee or file a statement of finances. Id. at Ex. 14. The state court of appeals issued a certificate of finality, stating the second PRP became final on June 20, 2017. Id. at Ex. 15. Petitioner did not seek review from the Washington Supreme Court. See id.
On March 1, 2017, Petitioner filed a motion for relief from judgment, which was transferred to the state court of appeals to be considered as a PRP, Petitioner's third PRP. Dkt. 13, Exs. 16, 17. On May 19, 2017, the state court of appeals dismissed the third PRP on the ground of abandonment because Petitioner had again failed to pay the filing fee or a statement of finances. Id. at Ex. 18. The state court of appeals issued a certificate of finality, stating the PRP became final on June 20, 2017. Id. at Ex. 20. Petitioner did not seek review with the Washington Supreme Court. See id.
On April 28, 2017, Petitioner filed a "Motion to Vacate Void Judgment," which the Court transferred to the state court of appeals to be considered as a PRP, Petitioner's fourth PRP. Dkt. 13, Ex. 21, 22, 23. Petitioner did file a state of finances. Id. at Ex. 24. However, on September 27, 2017, the state court of appeals dismissed Petitioner's fourth PRP as time barred pursuant to RCW 10.73.100, and Petitioner had not shown any exceptions to allow him to avoid the time bar. Dkt. 25. The state court of appeals issued a certificate of finality, stating the PRP became final on October 30, 2017. Id. at Ex. 26. Petitioner did not seek review with the Washington Supreme Court. See id.
On August 14, 2017, Petitioner filed a motion to vacate the legal financial obligations (LFO) imposed in his judgment ("motion to vacate"), and "Motion for Relief From Judgment Pursuant to CrR 7.8 and CrR 4.2(d)." Dkt. 13, Exs. 27, 28. The superior court denied Petitioner's motion to vacate and transferred his filings to the state court of appeals to be considered as a PRP, Petitioner's fifth PRP. Id. at Exs. 29, 30, 31. However, on February 21, 2018, the state court of appeals dismissed Petitioner's fifth PRP as time barred pursuant to RCW 10.73.100, and Petitioner had not shown any exceptions to allow him to avoid the time bar. Id. at Ex. 32. The state court of appeals issued a certificate of finality, stating the PRP became final on March 26, 2018. Id. at Ex. 33. Petitioner did not seek review with the Washington Supreme Court. See id.
On December 7, 2017, Petitioner filed a "Motion to Arrest Judgment Due to Lack of Jurisdiction," which was transferred to the state court of appeals to be considered as a PRP, Petitioner's sixth PRP. Dkt. 13, Exs. 34, 35, 36. However, on March 20, 2018, the state court of appeals dismissed Petitioner's sixth PRP on the ground of abandonment because Petitioner had again failed to pay the filing fee or a statement of finances. Id. at Ex. 37. The state court of appeals issued a certificate of finality, stating the PRP became final on April 20, 2018. Id. at Ex. 38. Petitioner did not seek review from the Washington Court of Appeals. See id.
On April 12, 2018, petitioner filed a "Motion to Dismiss" his underlying criminal conviction, which was transferred to the state court of appeals to be considered as a PRP, Petitioner's seventh PRP. Dkt. 13, Exs. 39, 40, 41. However, on August 21, 2018, the state court of appeals dismissed Petitioner's seventh PRP as time barred pursuant to RCW 10.73.100, and Petitioner had not shown any exceptions to allow him to avoid the time bar. Id. at Ex. 43. There is no indication whether the state court of appeals issued a certificate of finality. See id.
On April 30, 2018, Petitioner filed a motion for relief from judgment, which was transferred to the state court of appeals to be considered as a PRP, Petitioner's eighth PRP. Dkt. 13, Exs. 44, 45, 46. However, on July 10, 2018, the state court of appeals dismissed Petitioner's eighth PRP on the ground of abandonment because Petitioner had again failed to pay the filing fee or a statement of finances. Id. at Dkt. 47. There is no indication whether the state court of appeals issued a certificate of finality. See id.
On July 5, 2018, petitioner filed a "Notice for dismissal for Lack of Jurisdiction," which was transferred to the state court of appeals to be considered as a PRP, Petitioner's ninth PRP. Dkt. 13, Exs. 48, 49, 50. The decision is not included in Respondent's submission of the state court record because the ninth PRP was still pending before the state court of appeals when Respondent made the filing. See Dkt. 12, p. 6. Respondent states, at the time of filing, the state court of appeals had acknowledged the petition, but was still waiting on either a filing fee or a statement of finances from Petitioner. Id.; Dkt. 13, Ex. 50.
On July 16, 2018, Petitioner filed the Petition. Dkts. 1, 5.
Petitioner filed his Petition on July 16, 2018. Dkts. 1, 5. However, Respondent argues Petitioner filed his Petition after the one-year statute of limitations prescribed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), codified at 28 U.S.C. § 2241 et seq., and further argues Petitioner is not entitled to any form of tolling that would excuse the late filing. Dkt. 12. Petitioner has not responded to this argument.
Pursuant to the AEDPA, a one-year statute of limitations applies to federal habeas petitions. Section 2244(d)(1) states:
If during the limitations period a "properly filed application for state post-conviction or other collateral review . . . is pending," the one-year period is tolled. 28 U.S.C. § 2244(d)(2); see Pace v. DiGulielmo, 544 U.S. 408, 410 (2005).
Here, the judgment and sentence in Petitioner's underlying conviction became final for purposes of § 2254(d)(1) on March 3, 2016. Petitioner's judgment and sentence was entered on February 2, 2016. Dkt. 13, Ex. 3. Petitioner had thirty days after that date to seek appellate review with the state court of appeals. See RAP 5.2(a) (notice of direct appeal must be filed within 30 days of entrance of the judgment). Thus, Petitioner had until March 3, 2016 to file a direct appeal, which he either declined or failed to do. See Dkt. 13. Therefore, Petitioner's judgment became final and the AEDPA limitations period began to run on March 3, 2016. See Gonzalez, 565 U.S. at 149-50 (judgment becomes final under § 2244(d)(1)(A) when the time for pursuing direct review expires).
The AEDPA limitations period ran for 274 days, then, on December 2, 2016 — the date Petitioner filed his first PRP — the limitations period was tolled pursuant to 28 U.S.C. § 2244(d)(2). See Dkt. 13, Ex. 5. The statute of limitations, therefore, stopped running from December 2, 2016, until April 28, 2017 — the date on which Petitioner's first PRP became final. See Carey v. Saffold, 536 U.S. 214, 220 (2002) (an application remains "pending" "until the application has achieved final resolution through the State's post-conviction procedures"); Corjasso v. Ayers, 278 F.3d 874, 879 (9th Cir. 2002) (finding the statute of limitations remains tolled until the state collateral attack becomes final). When his first PRP became final, Petitioner had 91 days (for a total of 1 year) remaining to file his Petition. In other words, the tolling from his first PRP gave Petitioner until July 28, 2017 to file a timely federal habeas petition.
Petitioner is not entitled to statutory tolling for any of his remaining eight PRPs. 28 U.S.C. § 2244(d)(2) allows for tolling when a "properly filed" state collateral attack is pending before the state courts. See Pace, 544 U.S. at 410 (noting only a "properly filed" state collateral attack will toll the AEDPA statute of limitations). However, an application for state relief from a conviction "is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000) (emphasis in original). A petitioner must observe all the "condition[s] to filing," such as submission of the filing fee and timeliness of the petition, in order for an application for state relief to be "properly filed." Pace, 544 U.S. at 413.
Here, Petitioner's second, third, sixth, and eighth PRPs were all dismissed by the state court of appeals for abandonment because Petitioner had failed to file either the filing fee or a financial statement with the state court of appeals. Dkt. 13, Exs. 14, 18, 37, 47. Failure to provide a filing fee or a financial statement is a condition of filing, and so failure to do so indicates Petitioner's second, third, sixth, and eighth PRPs were not properly filed. See Artuz, 531 U.S. at 8 (noting the form of the document, the time limit on delivery, the court where it should be filed, and filing of a filing fee are examples of the rules a petitioner must adhere to in order to "properly file" a state application for relief). Thus, Petitioner is not entitled to statutory tolling for the periods in which he pursued his second, third, sixth, and eighth PRPs.
In addition, Petitioner's fourth, fifth, and seventh PRPs were all explicitly dismissed by the state court of appeals because they were filed outside the state one-year statute of limitations. Dkt. 13, Exs. 25, 32, 43. The Ninth Circuit has clearly stated an application for state postconviction relief that is dismissed as untimely is not "properly filed" for purposes of § 2244. Pace, 544 U.S. at 414 ("When a postconviction petition is untimely under state law, that [is] the end of the matter for purposes of § 2244(d)(2)") (internal quotations omitted). Thus, because Petitioner's fourth, fifth, and seventh PRPs were not filed within the state statute of limitations and so were not properly filed, Petitioner is not entitled to statutory tolling for the periods in which he pursued those PRPs.
Finally, at the time of filing Respondent's Response, Petitioner's ninth PRP was still pending in the state courts. See Dkt. 13, Ex. 50. Though Respondent admits that PRP may eventually be accepted on the merits, he notes it was filed on July 5, 2018. Dkt. 12, p. 16; Dkt. 13, Ex. 49. Because of the tolling caused by the filing of Petitioner's first PRP, the AEDPA statute of limitations lapsed on July 28, 2017. Applications for state post-conviction relief filed after the AEDPA statute of limitations has run do no reset the statute of limitations, nor may they be used to calculate additional statutory tolling. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) ("[S]ection 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed"); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001) (failure to file a state habeas petition before the AEDPA statute of limitations had run "resulted in an absolute time bar to refiling [even] after his state claims were exhausted"). Thus, because Petitioner filed his ninth PRP well after the AEDPA statute of limitations had run, he cannot rely on his ninth PRP for any additional statutory tolling.
Petitioner filed the Petition on July 16, 2018, which was almost one year after the limitations period expired. As Petitioner did not file the Petition within one year of his judgment and sentence becoming final, and Petitioner has only shown he is entitled to statutory tolling for his first PRP, the Court finds the Petition is untimely.
The AEDPA statute of limitations is subject to equitable tolling where the petitioner pursued his rights diligently and "some extraordinary circumstance stood in his way." Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotations omitted). To receive equitable tolling, a petitioner at the very least must show the extraordinary circumstances "were the but-for and proximate cause of his untimeliness." Ansaldo v. Knowles, 143 Fed. Appx. 839, 840 (9th Cir. 2005). In response to a question on the § 2254 form regarding the timeliness of Petitioner's Petition, Petitioner indicates: "[t]he judgment is void, the guilty plea is invalid and the court lacked jurisdiction to enter judgment. Also jurisdiction can be challenged any time." Dkt. 6, p. 13. However, Petitioner's response merely presents legal argument challenging jurisdiction and makes no reference to any allegations showing he experienced some extraordinary circumstance that prevented the timely filing of his Petition.
Further, Petitioner's serial filings of PRPs in the state courts, even after the state court of appeals told him his PRPs were untimely, indicate Petitioner was not, in fact, diligently attempting to pursue his rights. Rather, it indicates he continued to file motions knowing the state courts would likely reject them. Petitioner has provided no further argument or evidence he was subject to some extraordinary circumstance that prevented him timely filing his Petition. He includes no such argument in the Petition itself, nor in his Motion to Strike. He also has not filed any other Traverse or other document that indicates he believes he is entitled to equitable tolling.
Thus, Petitioner has not demonstrated he is entitled to equitable tolling. Therefore, the Court finds Petitioner's Petition is time barred and Petitioner is not entitled to equitable tolling to avoid the time bar.
Before Respondent filed his Response, Petitioner filed a Motion to Strike, asking the Court to dismiss his underlying criminal convictions. Dkt. 9. However, that Motion requests the Court to "vacate[] the judgment [of the Pierce County Superior Court], strike the complaint or dismiss with prejudice and release John Ray Woods, Jr. immediately." Dkt. 9, p. 13. This is the same relief sought in the Petition and as a result, Petitioner's Motion to Strike is essentially a second petition for habeas relief. Thus, to the extent Petitioner uses this Motion to Strike to bolster his Petition, it should also be denied on the same grounds as the Petition. Further, the Motion to Strike should also be denied to the extent it is considered a stand-alone motion as what he presents is not contemplated by the Federal Rules or Local Rules. The Court therefore recommends the Motion to Strike also be denied.
A petitioner seeking post-conviction relief under 28 U.S.C. § 2254 may appeal a district court's dismissal of the federal habeas petition only after obtaining a certificate of appealability (COA) from a district or circuit judge. See 28 U.S.C. § 2253(c). "A certificate of appealability may issue . . . only if the [petitioner] has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Petitioner satisfies this standard "by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). No jurist of reason could disagree with this Court's evaluation of Petitioner's claims or would conclude the issues presented in the Petition should proceed further. Therefore, the Court concludes Petitioner is not entitled to a certificate of appealability with respect to this Petition.
Petitioner's Petition is untimely as it was filed more than one year after the state court judgment became final. There are no extraordinary circumstances in this case requiring the application of equitable tolling principles. Therefore, the Petition is barred by the one-year limitations period imposed under 28 U.S.C. § 2244(d) and should be dismissed with prejudice. Petitioner's Motion to Strike should be denied. No evidentiary hearing is required and a certificate of appealability should be denied.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P.
6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time limit imposed by Fed. R. Civ. P. 72(b), the clerk is directed to set the matter for consideration on November 23, 2018, as noted in the caption.
The Court, having reviewed the Report and Recommendation of Magistrate Judge David W. Christel, objections to the Report and Recommendation, if any, and the remaining record, does hereby find and ORDER:
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THE COURT HAS ORDERED THAT:
The Report and Recommendation is adopted and approved. The Petitioner is DENIED. A certificate of appealability shall not issue. The case is closed.
